1918-04-30 — Page 3

Page

THE

DEPORTATION

CASE.

ACTION AGAINST OFFICIALS THE GOVERNMENT'S DEFENCE, WIDE POWERS OF THE LOCAL LEGISLATURE.

-The action which Li Hong Mi, a solici. tor's clerk, whose deportation has been

ordered, is bringing against the Captain Superintendent of Pulice, the Secretary for Chinese Affair and the Attorney General was continued in the Full Court yesterday,

the matter.

proceedings were confidential it was perhaps not worth while troubling about

The amend The Attorney-General ment simply makes the position a little clearer.

The Chief Justice: A matter may be confidential between two individuals, but your ples is that its disclosure would be injurious to the public interest. The gestion is one in which a man's liberly is at stake: he has been deprived from seeing the evidence against him. In my pinion, the amendment is a material

one

The Attorney-General: Ag it is not a The plaintiff is represented by Mr.

new defence, but was really foreshadow-

·H, E. Pullock, R.C., and' Me. Albuster,

ed in the correspondence and the plead O.RE., and Mr. E. H. Sharp. K.Cings, we ask that the amendment may be

O.BE., and the Attorney-General, Mr. J. -H. Kemp, C.B.E., appear for the de fendants,

allowed.

Mr. Justice Gompertz; In your plend ings you state that the report from the

HUNGKONG DAILY PRESS

ly. He presumed that the word judicial- ly used by his learned friend meant that all the concomitants of a trial in those Courts should be present. Ha submitted that that would be contrary to the cx press provisions of the Ordinance. On the other hand, taking it that the obliga- tion upon the Governor-in-Council was to act judicially in accordance with the special procedure Insel down by the Ordinance, then he submitted that the Governor-in-Council hall done that and he did not suppone that their Lordships would listen to buy anggested assump tion that he had not. Even if the plain- tiff thought the Governor-in-Council was acting in malice--and he did not imagine the plaintiff did think so-even then he would go so far as to say that the plain- tiff had no remedy in that Court, but only bad remedy through an appeal to

The plaintiff claims that the deporta Secretary for Chinese Affairs is confid the Secretary of State or to the King

Lion order is bad in law because of the

entin) and that the proceedings before

Dealing generally with the Legislative

TUESDAY, APRIL 801, 1918.

HONGKONG MAGISTRACY.

THE WANCHAI MURDER

A Javances was charged, on remand, with the murder of another Javanese at Wanchai

Un the application of Inspector Bim, Mr. Dyer Ball remanded the case till to-day.

ALLEGED KIDNAPPING.

Two Chinese young men were charged, on remand, with kidnapping a little boy from the custody of his parents, who live in a village near Canton.

evidence..

Sergeant Morphy applied: for a far- ther remand for the purpose of collecting

Mr. J. B. Wood accordingly remanded the case till Thursday.

CANDID CONFESSION. Chinese boy pleaded guilty to steal-

wrongful procedure adopted under theihe Governor-in-Counei) are confidential. Powers of the Colony Mr. Sharp pointed: 9% in oil-cat from a Japanese steamer

Deportation Ordinance, and. alterna turely, submits that if such procedure is allowed by the provisions of the Ordin- ance then the Ordinance is ultra pirės, hecause it is repugnant to the funda mental principles of natural justice.

You do not say, as a matter of fact, that the allegations upon which action was taken are confidential.

The Attorney-General: The report necessarily includes the evidence.

Mr. Justice Gompertz The evidence existed before the report was made,

The Attorney-General then stated that he had not csgreeted to be called upon to argue for the amendment at that stage and asked for a short time in which ta

At the outset of the proceedings yes terday the Attorney-General cported that a dispatch had just been received announcing that His Majesty had not Been advised to disallow the Ordinance..

Mr. Pollock then referred to the post-look up the eases bearing upon the mat tion of the Governor-in-Council and said ter. This was agreed to, the words Governor-in-Council, or Governor in Executive Council or Governor with the advice of the Execu Live Council meant that the Governor was acting with the advice of the Exten tive Council, although not necessarily with such Council assembled. In the interpretation of the Ordinance which they now had before them the Governor had to act with the advice of the Excen tivo Council.

THE CASE FOR THE DEFENCE, Mr. Sharp, in opening the case for the defence, said the two main heads in the. plaintiff's allegations were, tant the Ordinance was ultra vires and that cer. tain acts by the defendants were ultra vires to the Ordinance. For the sake of convenience he said he would first deal with the question of the validity of the Ordinance, and as a preliminary to this be referred at some length to the his. tory of Deportation in Hongkong. The first Ordinance as far as they could find Was passed in 1857. were granted under that Ordivanec, They were limited to the deportation of Chinese, but tho, powers were exercised by the Governor-in-Council under the He has to cousulle sume sort of confidential procedure a

czisted to-day....... In 1912 the powers were extended to include the deportation of British subjects in certain classes of cases

Mr. Justice Gompertz: He is not bound to follow it.

Mr. Pollock: For the purpose of in- terpreting this Ordinance--which is a penal Ordinance he must act with their

advice.

Powers to deport

Mr. Justice Gompertz: After com sulting them,

Mr. Pollock: thefo

Mr. Justice Gompertz: There is no doubt about that

Mr. Pollock then referred to the right-naturalised British subjects during the

of the accused party to call witnesses and submitted that the accused party had the right to be present when those witnesses were examined and the right to put questions to them."

Mr. Justice Gompertz: You did not

proclamation of the Pence Preservation Ordinance and any British subject what- ever not belonging to Hongkong who had been in prison here under sentence of H.M.' Supreme Court of China That was the first time British subjects. came under a Deportation Ordinance,

out that the foundation of all those powers lay in the words of the Charter giving permission to the Governor, by and with the advice of the Legislative Council, to make Inws for the peaco, order and good "Ginvernment of the Colony. In 1865 doubts and arisen as to the validity of Colonial laws-the same sort of doubts as had been argued before them in that case. In order to remove such doubts no Imperial Act was

passed the Colonial Laws Validity Art. The general effect of that Act was to give the sanetion of the Home Parlia ment to all Colonial Legislation, subject to one exception, which was that the Home Parliament always had power of expressly extending a law to a Colony and the Colony had no power to pass a law counteracting such a measure When

in Harbour.

Inspector Gordon said the defendant was en board the steamer apparently without any excuse and was inter noticed leaving the Kowloon Godown: Company's gates with the can wrapped in paper. Thure were over a dozen such cons on board waiting to be repaired.

Defendant admitted that he took the in for his own use, and that he had been to gaol previously for three weeks.

to

1. J. R. Wood sentenced defendant

six weeks' hard labour and four

bours' stacks.

CRUELTY TO ANIMALS.

Chinese was charged with cruelty to. animale,

Sergeant Thomas, of the Police Reserve, said he saw defendant on board the s.s. Latshan carrying two small baskets cach containing seven cats, which were ob it was argued that a local Ordinanceviously suffering from overcrowding. was ultra wires because it was repugnant to a law of the Home Parliament it had to be established that such law bad been expressly extended to this

Defendant pleaded guilty, stating that he was taking the cats to Canton for a friends?

Mr. Dyer Bull gave defendant & severo warning, remarking that he was sorry the law did not allow him to treat de fendant in the same manner as he had treated peor dumb animals He fined him $25.

"A CRIMINAL FAMILY"

Colony. That did away with all the arguments, that a Colonial Act based on the knowledge of local needs was to be set aside on the ground that it differed from, or was repugnant to, English luw,

A Chinese youth was charged with except in the one single case of its being stealing a lady's coat from a theatre and pugh to an English faw expresiich legally pawning it here a extended to the Colony Mr. Sharpluspector Grant said defendant had three previous convictions against him. He to show that

had three brothers who were bad charac quoted many caseA

again the Courts bad ters, and the family, generally were a again and refused to listen to any argument criminal one. They had not been pres viously banished, being Hongkong-born, that the action of the Colonial Legiala but application for an order of banish- ure should be restricted on the ground asent would shortly be made. that what such Legislature did seemed unfair or unjust The answer of the judges was that the local Legislatures understood the conditions Even if the judges were convinced that the Colonial

oake the simple request that the accusedIn 1914 the 1912 Ordinance was amended Legislature had made a mistake it was might be present when the witnesses by the addition of another class of were examined; you coupled with it the

British subjects British subjects born request that Counsel should be present in Hongkong of non-British parents The tendency right along had been slow

also.

persons.

inmaterial. The decision on the ques tion of expediency and policy was given entirely to the Colonial Legislature and no Court of Appeal at Home had any

Mr. Dyer Ball sentenced defendant to six months hard labour on the first charge, and to fourteen days on the socond charge, the sentences to run con-

currently.

-TRAVELLING ON THE TRAMS WITHOUT PAYMENT.

Two Chinese were charged with travel ling on the tram-cars without paying fares and also with assaulting the ticket inspector.

It was stated that defendants, when were tramway employés and were entitled to travel free. When the ticket inspector demanded fares of them they assaulted

m De'endants pleaded guilty to not pay ing the fares, but denied assaulting the inspector.

Mr. Pullock One of our complaints ly and carefully to extend these long power to review a question of policy.asked for their fares, replied that they.. was that the witnesses were called in established powers and the existing plaintiff's absence. Referring to the machinery to include a larger area of It seemed clear that these powers under practically the same procedure had existed from 1857 until 1912, before the first class of British subjects was drawn into them.

Puisoc. Judge's point he submitted that there had been po reply from the de fendants stating that plaintiff could be present unaccompanied by Counsel,

Even between 1912 and 1914 they had only those three classes mentioned

The amendment which the defendants desire to make in their pleadings was again the subject of argument. Their Lordships put the point referred to in the previous hearing that, bearing in brought under these powers, but in 1917 mind the altitude Mr. Pollock had taken ap, the amendment might not matfer one Way or the other.

Mr. Dyer Ball fined each defendant $10, with the alternative of ten days' hard labour.

FIGHT IN CELLS.

A Chinese woman pleaded guilty to stealing a pair of gold-mounted bangles and a pair of gold rings, valued at 842, from another Chinese woman.

The general position was that subject to the Colonial Laws Validity Act, which they saw validated the Ordinance, and subject to the assent of the King, which had now been given to this Deportation Ordinance, there was no limit whatso ever to the powers of the Legislature to pass any Ordinance which in its opinion was conducive to the peace, order and good Government of the Colony." If the Tocal Legislature wieled to go so far as to pass an Ordinance against ony man personally which would deprive him of bis property, his civil rights, and even his life, it had the power to do so.

The Chief Justice: Surely that would be outside the words "good government.

Mr. Sharg, No, No Court can review the question as to whether it is good government. There was only one body who could say whether it was good on bad, and that was the Colonial Legisla ture.

The question of policy, the ques tion of expediency was not for the Goth

Courts case as he had mentioned, would be in the jewe lory, which she had purchased out assent of the King, and it was not to be of her hard carned savings since she imagined that the King's consent would came to Hongkong, Ind been stolen. At be obtained to such an Ordinance, first it was suspected that one of the Except for the limitations enforced servants in the house had committed the by the assent of the King, by the Charter theft, but a signalman stationed on the of the Colony and by the Colonial Law roof of the Kowloon Police Station in- Validity Act, the powers of the local Legislature were as wide as those of the formed complainant that he saw def d- Home Parliament which were boundless. aut take the articles away. A search It was not within the province of that was made and defendant was arrested. At first she denied the theft, but later of any Court to decide whether Court or

admitted that she committed it in collu- 地道に

The safeguard,

Inspector Gordon said complainant was employed by him as wash ameh and lived in the Police quarters. On Satur day afternoon tho was visited by defend- anty who was a friend of hers. Com- plainant, however, was too busy to attend to defendant, who went up to the evening: complainant found that her complainant's quarters. Later in the

in the Ordinance which was now before theis Lordships, the long established powers and procedure were extended so

Mr. Pollock, however, objected to tho

as to include a fourth class, that was to amendment, and the Attorney General say, British subjects who, in the opinion was consequently called upon to state his of the Governor-in-Council, had been guilty of the kind of misconduct of arguments in favour of its being allowed.

The Attorney-General submitted that which it was alleged the plaintiff had been guilty offences connected with the question of withholding the evidence

the ministration of the law. Through An the public interest had been raised at quite an early stage in the proceed out all the period of 60 odd years they ings. Even when the special ease was knew of no substantial changes as re- being discussed the Government took up garded fundamental principles. The the position that these matters could not matter was left to the opinion of the 1 disclosed for the reason that the pro- Governor-in-Council and the proceedings sceedings were confidential. In a letter were always of a more or less confiden of January 24th, addressed by the Crown

tial character. It was extraordinary particular piece of legislation

The Chief Justice wayna v sion with two other women, who were no great subsequently arrested and brought to the difficulty on this branch of the cases Kowloon Police Station. When the nature to whether the Ordinance is ultra sires of the charge was read out to them they We would like you to devote your commenced an assault on their accuser, argument to the other branch of the with the result that all three of them were if the Ordinance is not locked up in the cell. All the jewellery, cazo namely ultra vires do its provisions, putting it except two gold rings, was recovered. shortly, ehut the door to the general principles of justice as laid down by Common Lawf

Solicitor to Messrs. Wilkinson & Grist, how many times they came across the it was stated: "I am unable to furnish phrase "in the opinion of the Governor you with a copy of the report transmitted in Council"; such a phrase showed the by the Secretary for Chinese Affairs or whole character and intent of the Ordin- “of the papers referred to for the reason

anoes The Legislature had seen fit to that these proceedings are confidential impost the duties coming under the The only possible ground on which they Ordinances upon, the Governor-in-Coun. would be confidential was on the ground it. It was manifest that the powers, circumstances of the of public interest. The same position which the was taken up in the statement of de Colony rendered necessary, could not be exercised by the ordinary Courts. Face

His learned friend had said a great deal, and very ably, about the obligation upon the Governor-in-Council to act judicial-

The Chief Justice suggested that if the Amonduent was simply an elaboration of the statement made in the pleadings that

conceived.

have

Mr. Sharp submitted that many of the cases he had quoted dealt with hoth branches of the claim by the plaintiff.

The Chief Justice: We do not weat to stop you, because Mr. Pollock has the right to reply, but you are dealing at great length with the cases bearing upon the question of the validity of the Ordinance and our difficulty does not

that branch The case was then adjourned.

in

Defendant said she was coerced into committing the robbery by the other two woning the robbery by the other time Mr. J. B. Wood sentenced defendan to three months hard labour.

The two other Chiness women were next charged with receiving stolen property.

Defendants accused each other. Mr J. K Wood discharged the second dendant, who seemed to have been the of the firme defendant. The latter was remanded for further inquiries.

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